Dr Augusto Zimmermann teaches Constitutional Law and
Australian Legal System at Murdoch University School of Law, W.A.

The Government of Western Australia wishes
to enact a Human Rights Act that is based on a particular model similar to
those existing in the United Kingdom , New Zealand , the Australian Capital Territory
and Victoria . In doing so the WA Government “believes that introducing a WA
Human Rights Act would help to establish a human rights culture in this State
because it would create a political and administrative culture in which the
need to respect human rights is understood and acted upon”.

But in contrast to what this government
suggests, the protection of basic human rights does not require any
human-rights declaration. Actually, even Nazi Germany and the Soviet Union
possessed bills of rights, although, as Charles Francis points out, “these
bills of rights proved of little avail, because there was no separation of
powers”. Indeed, as Sir Harry Gibbs once commented: “The most effective
way to curb political power is to divide it. A Federal Constitution, which
brings about a division of power in actual practice, is a more secure
protection for basic political freedoms than a bill of rights.”

One of the main problems with human
rights documents is that such documents are vague creatures that leave plenty
of scope for wonky judicial interpretation. According to law professor Gabriël A. Moens, “the
possibility of attributing different meanings to the provisions of a bill of
rights creates the potential for judges to read their own biases and philosophies
into such a document, especially if the relevant precedents are themselves
mutually inconsistent. Indeed, in most rights issues, the relevant decisions
overseas are contradictory. For example, rulings on affirmative action,
pornography, ‘hate speech’, homosexual sodomy, abortion, and withdrawal of life
support treatment vary remarkably. These rulings indicate that judges, when
interpreting a paramount bill of rights, are able to select quite arbitrarily
their preferred authorities… Since a bill of rights will often consist of
ambiguous provisions, judges can deliberately and cynically attribute meanings
to it which are different from the intentions of those who approved the bill –
in Australia ’s case the electorate”.

When the courts make bad decisions their
rulings are extremely hard to be corrected due to the entrenchment of
precedents. However, as law professor James Allan notes, “bills of rights are
usually accompanied by interpretative techniques which do not constrain judges
to deciding in accordance with the original intent of the enactors nor to the
original understanding at the time of passage. Instead, such instruments are
often interpreted as ‘living trees’, where judges pay heed to what they think
are ‘contemporary values’… The result is an interpretative regime that places
few, if any, constraints on the judiciary”.

As for its specific clauses, Article
20 of the WA Human Rights Act bill has been specifically designed to concede
‘group rights’ for ethnic, religious, and gender groups, which are supposedly
discriminated against. Unfortunately, there are serious problems with such
‘rights’ as human rights are not a single indivisible entity. They can and do
conflict. In fact, too much emphasis on group rights may eventually result in
reduction of individual rights of non-members of those privileged groups.

By granting special privileges to ethnic,
religious and gender groups, ‘group rights’ may lead to the marginalisation
and even the persecution of less-favoured groups or
individuals. The situation is disturbingly similar to that which occurred in
Nazi Germany, where the group was everything and the individual nothing.
According to sociology professor Alvin J. Schmidt, “political, economic, and
religious freedom can only exist where there is liberty and freedom of the
individual. Group rights that determine a person’s rights on the basis of
belonging to a given ethnic or racial group, as presently advocated by
multiculturalists and by affirmative action laws, nullify the rights of the
individual. Group rights greatly reduce the freedom of the individual in that
his rights stem only from the group; if he does not belong to the group, his
rights are greatly curtailed… When group rights get the upper hand, gone are
the ‘inalienable rights’ given to the individual by his Creator so admirably
expressed in the American Declaration of Independence”.

Article 7 of the draft Bill prepared by
the Government of Western Australia is also particularly disturbing. The clause
in question says that every person acquires the right to life only “after he or
she is born”. In other words, the right to life is not applied to human beings
before their birth. Under the terms of this Article, therefore, judges could
easily find ‘legal’ grounds to invalidate any statutory prohibitions of
abortion, thus leading to the legalisation of
barbaric practices such as “partial abortion”, where a baby as much as nine
months of gestation is killed by sucking out his or her brains soon before
birth is completed. Such an attack on the right of defenceless
individuals contravenes, among other international laws, the 1948 Declaration
of Human Rights, which explicitly declares that pre-born children have basic
rights to be protected by the rule of law.

There is no good reason why Western
Australians need a Human Rights Act and many reasons to believe its enactment
will tragically and ironically serve to reduce some of our most fundamental
rights. The introduction of this Act may for instance provoke the interference
of judges in crucial political issues of society, including abortion,
euthanasia, parent-child relations, immigration, and religious freedom.
Moreover, the modern emphasis of these recent bills of rights on the idea of
so-called ‘group rights’ represents a clear discrimination against people who
are members of the non-favoured groups. To conclude,
once enacted, such Act will inevitably exacerbate a self-indulging mentality of
rights without responsibilities, and limit our democratic rights and freedoms
to the expression of opinions which are acceptable only by the cultural elite.